M.C. Jain, J.
1. In these appeals office has raised an objection that the appellants have not paid the requisite court fee as per Section 46 of the Rajasthan Court Fees and Suits Valuation Act, 1961, (here in after referred to as 'the Act').
2. These appeals have been filed under Section 54 of the Rajasthan Land Acquisition Act, 1953 against the awards passed by the Civil Judge, Dungarpur on references having been made by the Land Acquisition Officer under Section 18 of the Rajasthan Land Acquisition Act. In the awards given by the learned Civil Judge, the amount has been considerably enhanced. The Land Acquisition Officer had awarded comparatively a very small sum.
3. Dissatisfied with the awards given by the learned Civil Judge, these appeals have been preferred.
4. The appellants have paid fixed court fee of Rs. 10/-, whereas the office objection is that ad valorem court fee should have been paid on the memos of appeal. So in these appeals a question arises, what amount of court fee is payable?
5. On behalf of the appellants it is urged by Mr. M.R. Singhvi that the court fee is payable in these appeals under Schedule II, Article 3, Clause (iii)(1)(b) of the Act as the appeals are against orders and not against decrees. The proceedings have been initiated under the Rajasthan Land Acquisition Act and the claims of the claimants were adjudged on the references having been made by the Land Acquisition Officer. So the proceedings are not in the nature of suit. The proceedings ultimately culminated into awards and not into decrees. So the decision given by the Civil Judge on the references can only be termed as orders and not decrees and so ad valorem court fee is not payable under Schedule I, Article 1 of the Act.. He submitted that so far as Section 46 of the Act is concerned that would not be attracted as no amount of compensation is claimed by the appellants. Under Section 46 of the Act, court fee is to be computed on memo of appeal on the difference between the amount awarded and the amount claimed by the appellant. So in terms, Section 46 will not apply and as there is no specific provision dealing with appeals arising under the Land Acquisition Act or relating to compensation where reduction of compensation is claimed in appeal, so Schedule II, Article 3 alone would be attracted under which only fixed court fee is payable. In the alternative he also submitted that Section 47 of the Act deals with the appeals. The present appeals may be considered to be appeals Under Section 47 of the Act, so the same fee would be payable Under Section 47, which would be payable in the Court of first instance on the subject matter of the appeal. So on that basis Mr. Singhvi submitted that fixed court fee only is payable. Mr. Singhvi submitted that with regard to the nature of the orders passed by the learned Civil Judge reference may be made to a decision of the Supreme Court in Diwan Brothers v. Central Bank of India, Bombay and Ors. (1) He urged that was a case under the Displaced Persons (Debts Adjustment) Act, 1951 and Section 14 of that Act provided for rejection of the claim or allowing of the claim and the Tribunal is required to pass a decree as it thinks fit. Their Lordships of the Supreme Court despite the use of the expression 'decree' by the Legislature considered that the expression 'decree' used in Section 14 does not possess the same sense in which the word 'decree' is used under the Act and the Code of Civil Procedure. Having regard to the provisions of the Displaced Persons (Debts Adjustment) Act, 1951 and having regard to the nature of the jurisdiction of the Tribunal, their Lordships held that court fee is not leviable considering the decision of the Tribunal as a decree, as the word 'decree' is not used under that Act in the same sense as it used in Section 2(2) of the Code of Civil Procedure and the word 'decree' has been used in Act in the sense of the Code of Civil Procedure. Mr. Singhvi pointed out that similar is the position obtaining in the present cases. The proceedings before the learned Civil Judge are not proceedings in the nature of suit. The proceedings are initiated on references being made by the Land Acquisition Officer and the proceedings ultimately culminated into awards. So the nature of the decision or the awards could not be considered to be 'decrees' and in the memos of court fee should be held to be payable as if the appeals have been filed against orders and not decrees.
6. How for the above submissions of Mr. Singhvi have force and are acceptable is to be seen. What is the nature of the awards passed by the Civil Judge? There is a specific provision contained in Section 26 of the Rajasthan Land Acquisition Act, which is reproduced here under:
26. Form of award: Every award under this part shall be in writing signed by the Judge and shall specify the amount awarded under Clause (1) of Section 23 and also the amounts (if any) respectively awarded under each of the other clauses of the same sub-section, together with the grounds of awarding each of the said amounts.
(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, Clause (2) and Section 2, Clause (9) respectively of the Code.
It would appear from Sub-section (2) of Section 26 that every award shall be deemed to be a decree and the statement of the grounds of every such award is judgment within the meaning of Section 2, Clause (2) and Section 2, Clause (9) of the Code of Civil Procedure. Sub-section (2) of Section 26 of the Rajasthan Land Acquisition Act is in the nature of a deeming provision. A fiction has been introduced in Sub-section (2) of Section 26 whereby the award shall be deemed to be a decree and the statement of grounds to be a judgment. The question is whether in the face of such a deeming provision can it be taken that for purposes of appeal the award may be considered to be an order and not a decree. For all purposes the award will have to be deemed to be a decree and when it is so treated, it has to be seen as to what court fees is payable on the appeal against such an award, which for all purposes has to be considered to be decree.
7. Mr. R.C. Maheshwari, learned Additional Government Advocate submitted that even Section 46 of the Act will have application to an appeal when the appeal is for reduction of the amount of compensation awarded to the respondent. He supported his contention by placing reliance on a Division Bench decision of the Rangoon High Court in Special Collector of Rangoon v. Ko Zi Na and Ors. AIR 1928 Rangoon 197. In that case it has been observed that in the case of an appeal by Crown the words 'the amount claimed by the appellant' in Section 8 (corresponding to Section 46 of the Act) mean 'the amount the appellant claims should have been awarded'. It was also observed that is certainly not the natural meaning of the words, but if the Section does apply to the case of an appeal by the Crown then it is the only interpretation of the closing words of the section in such a case. It may be stated that the learned Judges themselves have considered that is not the natural meaning of closing words in the section. When such is not the natural meaning of the words, then I am unable to agree with the view taken by the learned Judges of Section 8 of the Central Court Fees Act and in my humble opinion in an appeal by the Crown or any authority which is disputing the amount awarded the question of any claim by the appellant does not arise and so in terms Section 46 of the Act or for that matter Section 8 of the Central Court Fees Act would not be attracted.
8. Mr. Maheshwari, however, submitted that in face of Sub-section (2) of Section 26 of the Rajasthan Land Acquisition Act the award can not be considered to be an order and it will have to be treated as a decree. First of all he cited a D.B. decision of this Court in C. Alexander and Ors. v. The State of Raj. (1967) 17 ILR Raj. 78 R.C. It is a direct case on the point. A similar objection was raised by the office in that case. After referring to Sub-section (2) of Section 26 it was held that Schedule II, Article 3 contemplate an appeal from an order and not from a decree and the award given by the Addl. Collector amounts to a decree according to Section 26 of the Rajasthan Land Acquisition Act, 1953. So the appellant was allowed a month's time to pay the deficit court-fees.
9. I would not have proceeded to consider the matter further in face of this Division Bench decision, but Mr. M.R. Singhvi submitted that this Division Bench decision is no longer good law in face of the decision of the Supreme Court in Diwan Brother's case (supra). So it needs consideration as to how far the decision in C. Alexander's case (supra) stands affected by the decisions of the Supreme Court in Diwan Brother's case (supra). It is true that in Diwan Brother's case (supra) their Lordships have held that the expression 'decree' in the Court Fees Act has the same sense and connotation as it has under the Civil Procedure Code. Right from 1859 the history of the expression 'decree' has been traced and the matter has also been viewed in the light of the amendment made in Schedule II, Article 11 of the Central Court Fee Act. Having considered the connotation of the word 'decree' in Court Fees Act their Lordships proceeded to examine the provisions of Section 14 of the Displaced Persons (Debts Adjustment) Act. Taking into account the nature of the proceedings before the Tribunal under the Displaced Persons (Debts Adjustment) Act and the object of the Legislation, their Lordships held that the use of the word 'decree' in Section 14 is not final and it was observed that the term 'decree' appears to have been used by the Legislature to convey a sense of finality regarding the decision of the Tribunal, more particularly since the adjudication of the claim, but for the Act, would have been by a Civil Court and then it would have been a 'decree'. It may be pointed out that the position in the present case is slightly different. There was no such provision for consideration before the Supreme Court like Section 26(2) of the Rajasthan Land Acquisition Act, 1953. Here the matter requires consideration in the light of the deeming provision. When specifically the Legislature has provided in Section 26(2) of the Rajasthan Land Acquisition Act that the award shall be deemed to be a 'decree', then even when really the award may not amount to be 'decree' still legally it will have to be taken that it is a 'decree' for all purposes. I am unable to agree with the submission of Mr. M.R. Singhvi that the Division Bench view in any way stands affected or reversed by the decision in Diwan Brother's case (supra).
10. Although it is not necessary to refer to other decision cited by Mr. Maheshwari, but it will be useful to refer them as well. The various High Courts in India for purposes of computation of court-fee in appeal have considered the deeming provision and treated the award as 'decree'.
11. In Secretary of State v. P. Baij Nath AIR 1932 Oudh 224 it has been held that memorandum of appeal against the decision by the District Judge on a reference made to him under the Land Acquisition Act, enahancing the amount of compensation requires ad valorem court fee under Schedule I, Article 1 and not Rs. 10/-under Schedule 2, Article 17(iv). The decision of the District Judge is a decree and as such ad valorem court-fee is payable. Reliance was placed in this decision on a Division Bench authority of Calcutta High Court in the Secretary of State v. K.S. Banerjee AIR 1927 Cal 45. In the Calcutta case it has been observed that there was no discrimination between the court-fee payable by Secretary of the State and the claimant in an appeal against award of the Judge.
12. In R.B. Lala Narsingh Dev v. Secretary of State AIR 1953 PC 31 after quoting Section 26 it was observed that appeal lies to the Privy Council, although prior to the amendment of the Land Acquisition Act such an appeal was not maintainable to the Privy Council and it became maintainable as the award would be deemed to be a 'decree'. So for the purpose of appeal it has been laid down in this case that an appeal would lie as if the award is a decree.
13. In M. Dodla Malliah and Ors. v. The State of Andhra Pradesh : AIR1964AP216 it was observed that on award Under Section 26 is also a decree by virtue of the deeming provision in Section 26(2) of the said Act. Even before the amendment of Section 26(2) of the Land Acquisition Act, the adjudication of the Land Acquisition Court was an 'order', and it has now become a decree within the meaning of Section 2(2) of the Civil Procedure Code. After the amendment, the meaning of the word 'order' has been widened. It removes uncertainty and leaves no scope for doubt that it is not a decree in the ordinary sense, but only an award deemed to be decree, It is a decree under the Civil Procedure Code for all purposes and consequently for purposes of appeal to the High Court also.
14. A similar view has been taken by a Full Bench of the Kerala High Court in Balakrishnan Nambiyar and Ors. v. Kanakathidathil Madhavan and Ors. : AIR1979Ker40 . It was observed in this case:
In an appeal Under Section 60 of the Kerala Land Acquisition Act against the decision of the Land Acquisition Court apportioning compensation, the appellants are liable to pay court-fee on an ad valorem basis, Under Section 51 of Court-fees Act, on the compensation amount they laid claim to in the appeals and not a court-fee of Rs. 10/- under Article 3(A)(1) of Schedule II of Court-fee Act.
15. In a decision in Braja Kewat and Anr. v. Madanlal Agarwalla and Ors. AIR 1951 Pat 608 it was held that Schedule II, Article 11 was not applicable to the appeal as the award given by the Additional District Judge was to be deemed to be decree Under Section 26(2), Land Acquisition Act. As there was no particular provision that applied the residuary provision Schedule I, Article 1 applied. The value of the appeal was the entire amount of compensation awarded as the appellant was trying to set aside the award according to which he was entitled to nothing.
16. The nature of the proceedings under the Land Acquisition Act came up for consideration before the Punjab and Haryana High Court in a different context. In the case reported in Union Territory of Chandigarh v. Sardara Singh and Ors. the question arose with regard to calculation of counsel's fee while preparing memo of costs. While examining that question it was held that there is the least hesitation in holding that an application Under Section 18 of the Act has to be treated as a plaint and the proceedings on its basis as the proceedings in the suit and the resultant award as decree.
17. From a review of the above case law, it would appear that for all purposes the award has to be considered as a decree. So for purpose of appeal as well, the award would be taken to be a decree and ad valorem court-fee, therefore, is payable under Schedule I Article 1 and the Court-fee is not payable when the award is a decree under Schedule II, Article 3 of the Act. The charging section under the Act is Section 20 and Court-fee can be leviable either under the various chapters or under the Schedules. Even when there is no specific section for computation of court-fees in a matter like the present one, then Schedule I, Article 1 as it applies to a case like the present one, can be made applicable. Section 20 of the Act provides that the fee payable under this Act shall be determined or computed in accordance with the provisions of Chapter IV, Chapter VI, Chapter VIII and Schedules I and II. So wherever any of these provisions is applicable, then fee has to be paid accordingly.
18. I may also refer to the provisions contained in Section 9 of the Act, as Section 9 runs contrary to an established rule of interpretation of fiscal statutes. The Legislature by introducing Section 2 provided that when a document falling within two or more descriptions in the Act shall where the fee chargeable thereunder are different, be chargeable only with the highest of such fee provided that, where one of such descriptions is special and another general the fee chargeable shall be the fee appropriate to the special description. The matter can also be reviewed in the light of provisions of Section 9 and in that light as well the fee payable on the memo of appeal would be computed under Schedule I, Article 1, but such a computation will proceed on the basis that the award amounts to a decree.
19. In the light, of the above discussion, the office objection is maintained. Learned counsel for the appellants prays for two months' time for making payment of deficit court-fee. Time prayed for is allowed.